At this blog, I have previously argued that the Constitution does not allow the federal government, without consent of the states, to infringe upon the powers that are otherwise reserved to the states, through the process of making and executing treaties. That same issue was addressed in U.S. Supreme Court cases like Missouri v. Holland (1920) and Bond v. United States (2014). Missouri v. Holland involved federal power to protect migratory birds, and the Court said such protection is fine, even though that power is normally reserved under the Tenth Amendment.
The judiciary’s approval of almost unlimited power under the Treaty Clause has been accompanied by a similar stance as to the Commerce Clause. But, in November 2014, a U.S. District Court in Utah struck down an Endangered Species Act regulation that purportedly protected the Utah Prairie Dog under the Commerce Clause. The Pacific Legal Foundation has links to briefs in the case, which is pending in the Tenth Circuit, here (click on “Documents”).
I am not involved in the case, and tend to agree with the plaintiffs that the Commerce Clause cannot reasonably be extended so far. Putting this together with my opinion about the Treaty Clause, I deny the constitutionality of both Missouri v. Holland as well as the Endangered Species Act. This is an uncomfortable position for me to be in, because I very much support rescuing endangered species, and I do not think the individual states will always do a decent job if left to their own devices. Despite feeling uncomfortable, I strongly oppose reading my personal preferences into the Constitution, and of course the amendment process is always available under Article V, onerous though it may be.
But, there may be a nice escape hatch to get out of this predicament, because the Constitution apparently provides a way to develop a truly effective national policy on endangered species, as well as many other matters of a similar type. To understand this overlooked constititutional opportunity, one can look back to an important incident during the founding era, documented (for example) in a new book by Harvard legal historian Michael J. Klarman, titled The Framers' Coup: The Making of the United States Constitution (Oxford U. Press, 2016). Rhode Island was the last of the 13 colonies to ratify the Constitution, and they had to be pressured by Congress to ratify. In particular, the U.S. Senate passed in 1790 a bill forbidding importation of products from Rhode Island, barring U.S. ships from docking in Rhode Island and vice versa, and threatening other very stern measures; the House carefully delayed consideration of the bill so that it would still be pending when Rhode Island took the key vote in favor of ratifying the Constitution (see Klarman’s pages 527-529).
So, the founding generation must have understood that the Commerce Clause of the Constitution could be used for purposes of pressuring states to do things that they might otherwise not do. And that includes protecting endangered and threatened species. This becomes even more clear from another constitutional provision: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress." Now that the United States is more economically interconnected than ever, Congress has an almost limitless menu of ways to commercially pressure states to do things.
Another provision of the Constitution that is often overlooked is the one that says this: “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State….” (though “No State shall enter into any Treaty”). Congress could easily use its powers under the Commerce Clause (or at least its power to approve state taxes on imports) to pressure recalcitrant states into agreements about Endangered Species, and all sorts of other things. I suspect that such agreements would result in a much smaller federal administrative bureaucracy that would focus more on monitoring and coordinating states, that would allow states much greater leeway in formulating and accomplishing national goals, and that would replace the more heavy-handed, centralized, and unconstitutional arrangement that we have now. So those members of the judiciary who are tempted to overstretch the Constitution in order to protect the Utah Prairie Dog should relax, in my view.
In recent decades, the federal government has often used a carrot rather than a stick to get states on board with federal programs, mainly by conditioning receipt of federal funds upon cooperation by the state. But the U.S. Supreme Court has said that the condition must be related at least to the purpose of the federal expenditure. In South Dakota v. Dole (1987), for example, the Court said: “the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended – safe interstate travel.” In contrast, it tentatively seems to me that the ability of Congress to approve state taxes on imports from another state is not limited by any relatedness principle, even though the purpose of coercive federal action under the Commerce Clause may perhaps have to be related to interstate commerce.
Posted at 10:14 AM